Oath Exemptions, Voting Issues, and “Due Consideration”


I hope everyone has had a productive week!  With the help of our two great LLM interns, I am passing along some helpful information for some sections of the N-400.

 

  1. Exemptions from the Oath of Allegiance
    • Applicants are permitted to delete one or both of the following clauses from the Oath of Allegiance:
      • “that I will bear arms on behalf of the United States when required by the law”
      • “that I will perform noncombatant service in the Armed Forces of the United States when required by the law”
    • In order to have either of these portions waived, the applicant must show the inability to take these sections based on religious training and belief by clear and convincing evidence.  Specifically, the applicant must show:
      • He/she is opposed to “any type of service”
      • The objection is grounded in religious principles
      • Beliefs are sincere, meaningful, and deeply held
    • Practice Tips:  In addition to an addendum explaining the applicant’s request for exemption, it is helpful to include a letter from a religious organization to which the applicant belongs.  USCIS is permitted to request documentation from such an organization, explaining the beliefs and attesting that the applicant is in good standing.
      • Attached is an example from one of our applicants, who is a practicing Jehovah’s Witness.  The letter explains both the applicant’s involvement in the Congregation, as well as the beliefs that are contrary to the Oath portions.  Also helpful to include is a portion of the group’s religious text to illustrate and explain the beliefs.
    • Even if an applicant is currently not a member of any organized religious group and is therefore unable to get a letter, an exemption can still be requested.  I currently have an applicant who no longer belongs to a congregation and am planning to submit the following to show objection to the oath:
      • Affidavit (signed under the pains and penalties of perjury) describing the applicant’s beliefs, the origin of those beliefs in religious principles, and how the applicant abides by those beliefs in everyday life and decisions (for instance, raising children with the same beliefs);
      • Letter from a former congregation attesting to the applicant’s past membership; and
      • Documents that list the applicant’s religious affiliation (e.g. marriage certificate)
  2. Registering to Vote and/or Voting
    • Part 11, Questions 2 and 3 ask applicants whether they have ever registered to vote in a U.S. election, and whether they have actually voted in a U.S. election.
      • Have you ever registered to vote in any Federal, State or local election in the United States?
      • Have you ever voted in any Federal, State or local election in the United States?
    • Answering yes to either of these questions exposes the applicant to two possible grounds of deportability: unlawful voting and false claim to U.S. citizenship
      • Some states/municipalities allow non-citizens to vote in local elections.  If the applicant was permitted to vote in such elections under the law, they would not be considered to have voted unlawfully.
        • For example, the city of Boston Election Department specifies that in order to register to vote, “You must be a U.S. citizen, a resident of Massachusetts, and eighteen years old on or before election day.”
      • Voting also exposes the applicant to inadmissibility.  However, there is one exception if a person has voted.  To qualify for the exception, the applicant must show:
        • The applicant was living in the United States before the age of 16;
        • One or both of the applicant’s parents were U.S. citizens either by birth or naturalization; AND
        • The applicant had an honest and reasonable belief that they were a citizen of the U.S.
      • Practice Tips:
        • If an applicant thinks they may have registered and/or voted, check their voter registration status.
          • The website for Massachusetts is http://www.sec.state.ma.us/VoterRegistrationSearch/MyVoterRegStatus.aspx
            • Name, birth date, and zip code must be entered exactly as it was when the person registered
              • If the person has moved, try each different zip code they have lived in
              • Try all variations of names they may have used
            • Try to find out in what kind of election the applicant may have voted.  Look at the eligibility requirements for voters.
            • If the applicant voted unlawfully, see if they fit into the above exception.
  3. Due Consideration
    • One of our partners provided us with a sample letter to request “due consideration” at an applicant’s naturalization interview (attached).  The law (8 C.F.R. § 312.2) provides that such consideration should be given when taking into account the applicant’s education, background, age, residence in the U.S., opportunity to learn the required information, etc.
    • We tried to find more information about this standard, but there is very little information out there.  There are no definition or practical guidelines, but we did find a few pieces of information that may be helpful for applicants:
      • USCIS officers should use due consideration on a case-by-case basis
      • Affects how an officer should choose subject matters, how to phrase questions, and how to evaluate applicant responses
      • It is not an exemption from the English and/or civics test
      • No guidance provided to field offices so it has been applied unevenly between officers and offices
    • CLINIC provided an example of due consideration:
      • If the applicant is elderly, has only a few years of education in his or her native country, and has faithfully taken citizenship classes for a year, the officer should use his or her discretion to adjust the difficulty of the test for that applicant and perhaps ask easier questions.
    • Practice Tip:  The most important thing to remember with regards to due consideration is that it is something that the USCIS officer should do.  Since there are not any clear guidelines (yet), there is not currently any standard that we can expect to be applied.  It is worth it to send the letter requesting due consideration if you have an applicant who is trying really hard but is still struggling.

 

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